Under the current rules, an employer must keep records of injuries and illnesses for five years and must provide these records to OSHA during workplace inspections. However, the OSH Act limits the administration's fining power to a six-month statute of limitations.

OSHA had interpreted this seeming inconsistency by saying that the records must be properly maintained for the entire five-year period. Therefore, even if the injury or illness was omitted outside of the six-month mark, OSHA considered it part of the current five-year requirement and would issue a fine.

However, the Volks court ruled that if the specific unrecorded injury or illness occurred more than six months before inspection, then OSHA could not issue a citation to the employer. Although employers must keep the record for five years, the court reasoned that keeping the record and completing it for a specific injury or illness are two different obligations.

The proposed rules are designed to eliminate this distinction and would make the legal standard more in line with OSHA's original interpretation. With the new rules, keeping the injury and illness records accurate and up-to-date would be an ongoing process that does not terminate when the seven-day recording period has passed.

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